Greg Abbott, in His Official Capacity as Governor of the State of Texas John Scott, in His Official Capacity as Secretary of State of Texas The State of Texas v. Mexican American Legislative Caucus, Texas House of Representatives Roland Gutierrez Sarah Eckhardt Ruben Cortez, Jr. Tejano Democrats

Supreme Court of Texas
══════════
No. 22-0008
══════════

Greg Abbott, in His Official Capacity as Governor of the
State of Texas; John Scott, in His Official Capacity as
Secretary of State of Texas; and the State of Texas,
Appellants,

v.

Mexican American Legislative Caucus, Texas House of
Representatives; Roland Gutierrez; Sarah Eckhardt;
Ruben Cortez, Jr.; and Tejano Democrats,
Appellees

═══════════════════════════════════════
On Direct Appeal from the
250th District Court of Travis County, Texas
═══════════════════════════════════════

Argued March 23, 2022

JUSTICE LEHRMANN delivered the opinion of the Court, in which
Justice Devine, Justice Busby, Justice Bland, Justice Huddle, and
Justice Young joined.

CHIEF JUSTICE HECHT filed a dissenting opinion, in which Justice
Boyd and Justice Blacklock joined.

Two sets of plaintiffs—the Mexican American Legislative Caucus
(MALC) and a group of plaintiffs we and the parties refer to as the
Gutierrez Plaintiffs—sued various State defendants claiming that the
recently enacted laws reapportioning Texas’s legislative districts violate
Article III, Sections 26 and 28 of the Texas Constitution. Those now-
consolidated cases come to us on direct appeal of the trial court’s order
largely denying the defendants’ pleas to the jurisdiction. The
defendants challenge jurisdiction on multiple grounds, including
mootness, lack of standing, and sovereign immunity. We hold: (1) the
claims are not moot; (2) MALC lacks associational standing to pursue
its claims; (3) at least one of the Gutierrez Plaintiffs has standing to
pursue each claim against a proper defendant, but not the State of
Texas; (4) the Gutierrez Plaintiffs’ Section 26 claim is not barred by
sovereign immunity; (5) the Gutierrez Plaintiffs’ Section 28 claim is
barred by sovereign immunity; and (6) the Gutierrez Plaintiffs should
have the opportunity to replead their Section 26 claim against a proper
defendant. We reverse the trial court’s order in part, dismiss MALC’s
claims and the Gutierrez Plaintiffs’ Section 28 claim for lack of
jurisdiction, and remand the case to the trial court.

I. Background

Under federal law, the U.S. Census Bureau is required to release
a census of the population on the first day of April every ten years. 13
U.S.C. § 141(a). Texas uses this data to reapportion its legislative
districts in accordance with the United States and Texas Constitutions.
See Reynolds v. Sims, 377 U.S. 533, 577 (1964) (holding that “the Equal
Protection Clause requires that a State make an honest and good faith
effort to construct districts, in both houses of its legislature, as nearly of
equal population as is practicable”); TEX. CONST. art. III, § 28 (“The

2
Legislature shall, at its first regular session after the publication of each
United States decennial census, apportion the state into senatorial and
representative districts, agreeable to the provisions of Sections 25 and
26 . . . .”); id. art. III, § 26 (governing apportionment of legislative
districts among counties).
In 2021, the COVID-19 pandemic caused the Census Bureau to
miss the April 1 deadline for release of the data from the 2020 census,
and the Bureau published that data on September 16, 2021. In the
meantime, the Texas Legislature’s 87th regular session ran from
January 12, 2021, to May 31, 2021, and thus concluded several months
before the data’s release. On September 7, 2021, Governor Greg Abbott
called a special session of the Legislature to commence on September 20
and specifically address reapportionment.
During that special (third called) session, the Legislature passed
H.B. 1 and S.B. 4, the two bills that reapportioned the districts for the
Texas House and Senate, respectively. The Governor signed the bills
into law on October 25. One of the complaints at issue relates to the
manner in which H.B. 1 adjusts the House districts within Cameron
County. Under the old map, House Districts 37 and 38 were wholly
contained within Cameron County, and House District 35 was shared
between Cameron and Hidalgo Counties. Under the new law,
District 38 remains wholly contained within Cameron County and
District 35 remains shared between Cameron and Hidalgo Counties, but
District 37 is now shared between Cameron and Willacy Counties.
As relevant here, two lawsuits challenging the reapportionment
laws were filed. First, on November 3, 2021, the Mexican American

3
Legislative Caucus, Texas House of Representatives (MALC), “the
nation’s oldest and largest Latino legislative caucus,” sued Governor
Abbott and Secretary of State John Scott in their official capacities,
challenging the constitutionality of H.B. 1. MALC alleged that H.B. 1
violates the so-called “county line rule” in Article III, Section 26 of the
Texas Constitution by providing only one district wholly contained
within Cameron County even though the county’s population is
sufficient to support two such districts. MALC sought a declaration that
H.B. 1 violates Section 26 and requested temporary and permanent
injunctions “enjoining the administration and oversight of upcoming
primary and general elections” under the unconstitutional law. The
Governor and Secretary petitioned the Chief Justice of this Court to
convene a special three-judge district court to hear the case. See TEX.
GOV’T CODE § 22A.001(a)(2) (authorizing the attorney general to file
such a petition in a suit against a state defendant involving the
apportionment of certain electoral districts). That petition was granted,
and the case was transferred to the three-judge court.
Shortly thereafter, on November 22, 2021, a second lawsuit
regarding the reapportionment laws was filed—this time against the
State of Texas—by two state senators (Roland Gutierrez and Sarah
Eckhardt), a candidate for House District 37 (Ruben Cortez Jr.), and the
Tejano Democrats (collectively, the “Gutierrez Plaintiffs”). The
Gutierrez Plaintiffs similarly alleged that H.B. 1 violates Article III,
Section 26, and they further alleged that both H.B. 1 and S.B. 4 violate
Article III, Section 28 because they were enacted before, rather than
“at,” the “first regular session after the publication of [the] United States

4
decennial census.” The Gutierrez Plaintiffs requested a declaration that
H.B. 1 and S.B. 4 are unconstitutional and sought to enjoin their
implementation. The three-judge district court transferred the second-
filed suit to itself and consolidated the causes. Id. § 22A.003(b).
The two sets of defendants filed pleas to the jurisdiction. The
Governor and Secretary argued that MALC lacked standing because it
had not established that the new House map injured MALC or any of its
members. They further argued that MALC failed to plead a viable claim
on the merits and thus failed to establish a waiver of sovereign
immunity. The State similarly argued that the Gutierrez Plaintiffs
lacked standing and that their claims were barred by sovereign
immunity. 1
The trial court held a combined evidentiary hearing on the pleas
to the jurisdiction and the plaintiffs’ motions for temporary injunctive
relief. As to MALC’s claims, the trial court denied the Governor and
Secretary’s plea and denied MALC’s motion. As to the Gutierrez
Plaintiffs’ claims, the trial court granted the State’s plea with respect to
the claims for injunctive relief, dismissing those claims, and denied the
plea with respect to the claims for declaratory relief. Thus, what
remains pending after the trial court’s order are both sets of plaintiffs’
claims for declaratory relief and MALC’s request for a permanent
injunction.
On December 7, 2021, the defendants filed a direct appeal to this
Court of the trial court’s order on the pleas to the jurisdiction. See TEX.

1 After the pleas to the jurisdiction were filed, MALC amended its
petition to add the State as a defendant but did not serve it with citation.

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CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing an interlocutory
appeal from an order that grants or denies a plea to the jurisdiction by
a governmental unit); TEX. GOV’T CODE § 22A.006(a) (“An appeal from
an appealable interlocutory order or final judgment of a special three
judge district court is to the supreme court.”). 2 In their response to the
defendants’ statement of jurisdiction in this Court, the plaintiffs stated
that they were not “ask[ing] this Court to disturb the current election
cycle at this point in the litigation and in light of the Court’s opinion in
In re Khanoyan,” in which this Court explained the judicial limitations
on issuing relief that would disrupt an ongoing election process. See 637
S.W.3d 762, 764–66 (Tex. 2022). The plaintiffs further requested
expedited consideration of the case to “allow the parties time to litigate
the constitutionality of the 2021 maps in time for the 2023 regular
legislative session.” We granted the appeal.
The defendants argue that the district court erred in denying
their pleas to the jurisdiction and present three overarching grounds for
reversal: (1) the plaintiffs seek an improper advisory opinion because
“there is no longer a live controversy between the parties”; (2) the
plaintiffs lack standing; and (3) the plaintiffs’ claims are barred by
sovereign immunity. We address the grounds in the order presented.

2 The portions of the trial court’s order denying MALC’s motion for
temporary injunction and granting the State’s plea to the jurisdiction as to the
Gutierrez Plaintiffs’ claims for injunctive relief were not appealed and are not
before us.

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 II. Standard of Review

A plea to the jurisdiction is a “dilatory plea” that challenges a
court’s jurisdiction to hear the case. Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 635 (Tex. 2012). A plea may challenge whether
the plaintiff has alleged facts that affirmatively demonstrate
jurisdiction or the existence of those jurisdictional facts. Id. For the
former, we resolve the plea based solely on the pleadings. Id. For the
latter, our review mirrors that of a traditional motion for summary
judgment. Id.

III. Mootness

Under the Texas Constitution’s separation-of-powers doctrine,
courts lack jurisdiction to issue an advisory opinion, the “distinctive
feature” of which is that it “decides an abstract question of law without
binding the parties.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 444 (Tex. 1993); TEX. CONST. art. II, § 1. We thus lack
jurisdiction to issue an opinion on a moot controversy. See Heckman v.
Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). Summarizing
black-letter law on mootness, we explained in Heckman that “[a] case
becomes moot if, since the time of filing, there has ceased to exist a
justiciable controversy between the parties—that is, if the issues
presented are no longer ‘live,’ or if the parties lack a legally cognizable
interest in the outcome.” Id. (citations omitted). “Put simply,” we
continued, “a case is moot when the court’s action on the merits cannot
affect the parties’ rights or interests.” Id. However, mootness is difficult
to establish. The party asserting it must prove that intervening events
make it “impossible for a court to grant any effectual relief whatever to

7
the prevailing party.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161
(2016) (emphases added) (citation omitted).
The defendants here assert that this controversy is moot because,
by expressly disclaiming in this Court any request for relief that would
disturb the current (2022) election cycle, the plaintiffs effectively
concede that they seek the Court’s opinion about the constitutionality of
H.B. 1 and S.B. 4 solely to guide the Legislature when it again
undertakes reapportionment during the 2023 regular session. Such an
opinion, the defendants assert, would clearly be advisory (or, said
differently, would resolve a moot controversy) because it would have no
effect on the laws being challenged in this suit. 3
The plaintiffs disagree with both the defendants’ characterization
of the plaintiffs’ “disclaimer” and its effect on the existence of a live
controversy. The plaintiffs contend that they merely clarified in their
response to the statement of jurisdiction, filed on January 18, 2022, that
they were not asking this Court to enjoin the March 2022 primary
because (1) they did not appeal the trial court’s interlocutory rulings
denying or dismissing injunctive relief and (2) Khanoyan foreshadowed
the futility of such a request. The plaintiffs further argue that their
existing claims for declaratory relief invalidating H.B. 1 and S.B. 4 are
live disputes, and that the trial court retains jurisdiction to declare the
bills unconstitutional and then consider the propriety of permanent
injunctive relief. And to the extent that injunctive relief before the 2022

3 The defendants do not expressly use the word “moot,” but they
impliedly do so by asserting that “there is no longer a live controversy between
the parties.”

8
general election is unavailable under Khanoyan, the plaintiffs contend
that such relief is nevertheless available to enjoin the challenged laws
in future elections, as the defendants’ assertion that the Legislature will
enact new reapportionment laws during the 2023 session is mere
speculation.
In light of the plaintiffs’ clarification of the relief they continue to
seek in this suit, we cannot conclude, as the dissent does, that they have
clearly abandoned any request for relief that relates to the 2022 election.
Post at 2 (Hecht, C.J., dissenting). That said, we recognize that, because
the primary has already taken place, the likelihood of obtaining judicial
relief that would disturb the general election is exceedingly low. See
Khanoyan, 637 S.W.3d at 767 (“Both because of where we are in the
electoral calendar [the primary process had already begun] and because
of the likelihood of substantial harm that would flow from any judicial
action, the relief Relators seek [invalidating challenged precinct maps]
transgresses this Court’s settled limits on judicial interference with
elections.”). But courts are not without jurisdiction to grant such relief,
and we cannot say that it is “impossible” that a judgment would “grant
any effectual relief whatever” to the plaintiffs. Campbell-Ewald, 577
U.S. at 161. The plaintiffs challenge existing statutes and seek
declaratory and injunctive relief in the trial court regarding the effect of
those statutes on the 2022 election. We hold that a live controversy
remains and turn to whether the plaintiffs have standing to assert their
claims.

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 IV. Standing

We recently reiterated that the “Texas standing requirements
parallel the federal test for Article III standing,” such that a “plaintiff
must allege personal injury fairly traceable to the defendant’s allegedly
unlawful conduct and likely to be redressed by the requested relief.” In
re Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (citation omitted); Allen v.
Wright, 468 U.S. 737, 751 (1984). To establish standing, then, a plaintiff
must show (1) an “injury in fact” that is (2) “fairly traceable” to the
defendant’s challenged action and (3) redressable by a favorable
decision. Abbott, 601 S.W.3d at 808; Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992). Such a showing ensures the existence of “a real
controversy between the parties” that “will be actually determined by
the judicial declaration sought.” Brown v. Todd, 53 S.W.3d 297, 305
(Tex. 2001) (citation omitted).

A. MALC’s Associational Standing

MALC seeks a declaration that H.B. 1 violates Article III,
Section 26 of the Texas Constitution and an injunction restraining the
defendants from conducting elections under that law. MALC claims
“associational standing” to pursue those claims on behalf of its members.
Adopting the United States Supreme Court’s standard for associational
standing, we have held that “an association has standing to sue on
behalf of its members when ‘(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to protect
are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual
members in the lawsuit.’” Tex. Ass’n of Bus., 852 S.W.2d at 447 (quoting

10
Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343
(1977)). In other words, associational standing requires establishing
everything that an individual plaintiff would have to establish, plus
satisfying additional burdens that apply only to associational standing.
To properly address MALC’s associational standing, we begin with a
discussion of the constitutional provision at issue and the dispute about
what it requires.
Article III, Section 26 of the Texas Constitution, the source of the
county-line rule, was adopted in 1876 and provides:
The members of the House of Representatives shall be
apportioned among the several counties, according to the
number of population in each, as nearly as may be, on a
ratio obtained by dividing the population of the State, as
ascertained by the most recent United States census, by
the number of members of which the House is composed;
provided, that whenever a single county has sufficient
population to be entitled to a Representative, such county
shall be formed into a separate Representative District,
and when two or more counties are required to make up the
ratio of representation, such counties shall be contiguous
to each other; and when any one county has more than
sufficient population to be entitled to one or more
representatives, such representative or representatives
shall be apportioned to such county, and for any surplus of
population it may be joined in a Representative District
with any other contiguous county or counties.

TEX. CONST. art. III, § 26. In Smith v. Craddick, we discussed the
parameters of this provision:
Representation in the House of Representatives is thereby
apportioned among the counties of the state according to
population. If the population of a county is so small as not
to entitle that county to one representative, two or more
contiguous Counties may be joined in a separate district.

11
 When one county has a population which exceeds that
which entitles it to one or more representatives, that
County is to be apportioned to what it is entitled, and the
County may be joined with contiguous counties for the
district representative to which the surplus population
entitles it.

471 S.W.2d 375, 376 (Tex. 1971). Under Section 26, barring any conflict
with the Fourteenth Amendment’s requirement of “substantially equal
legislative representation for all citizens of a state”—i.e., the one-person,
one-vote rule, which is not at issue here—apportionment of House
districts is “by county,” and when the population is sufficient, district
lines generally follow county lines. Id. at 377 (citing Reynolds, 377 U.S.
at 533). In requiring that House districts be apportioned by county,
Section 26 serves a markedly different purpose than the laws that
ensure voting rights are not abridged on the basis of race. See, e.g.,
Voting Rights Act § 2, 52 U.S.C. § 10301(a).
The parties agree that when a county’s population exceeds the
number required to make up a single House district (dubbed the “ideal
district size”), at least one district must be wholly contained within the
county’s borders. They part ways on how the provision applies when a
county’s population exceeds the number required to make up multiple
districts—that is, when the population is more than twice the ideal
district size. Cameron County, for example, has a population of 421,017,
which is 2.17 times the current ideal district size of 194,303. MALC
asserts that for a county with that population, two districts must be
wholly contained within its borders (again, absent conflict with the one-
person, one-vote requirement). The Governor and Secretary respond
that so long as one district is wholly contained within that county and

12
any additional districts are joined only with contiguous counties,
Section 26 is satisfied.
With those clarifications, we turn to MALC’s associational
standing to pursue a Section 26 claim. The Governor and Secretary
argue that MALC meets neither the first nor second requirement to
establish this type of standing. As to the first—its members would
otherwise have standing to sue in their own right—they argue that
MALC has identified no individual members who have suffered a
particularized injury from the allegedly unconstitutional law. MALC
responds that (1) its petition generally states that its members include
the Texas House Representatives who represent and are residents of the
challenged districts and (2) one of its members, Representative Alex
Dominguez, currently represents House District 37 but, because of
reapportionment under H.B. 1, is ineligible to run for reelection.
Representative Dominguez is the only specifically named MALC
member. His ineligibility to run for reelection, we agree, could
constitute a particularized injury traceable to the challenged action if
there were any indication that he intended to run for that seat but was
prevented from doing so. However, as the Governor and Secretary note,
Representative Dominguez is currently running for a state Senate seat,
which is not affected by the county-line rule, and there is no allegation
or evidence that he would have run for reelection in the House rather
than for a Senate seat but for H.B. 1. Thus, the fact that Representative
Dominguez no longer resides in District 37 does not establish a concrete,
particularized injury traceable to H.B. 1’s reapportionment of the House
districts. Moreover, Representative Dominguez resides in the new

13
District 38, which remains wholly within Cameron County. Our
disposition today makes it unnecessary to resolve whether residents of
a district that is wholly contained within a single county could satisfy
the injury-in-fact prong of standing, but at the very least, a Cameron
County resident of one of the other two districts would have a far less
abstract injury.
MALC fails to identify any other specific individual members.
Instead, it generally claims that its members who are residents of
Cameron County “have an interest in maintaining Cameron County’s
representational power, which is embodied by the Texas Constitution’s
county line rule,” and “that power will be diluted by splitting Cameron
County unnecessarily into two districts extending in two different
directions.” The Governor and Secretary note that Cameron County
voters will still fully control two House districts, with 100% control of
District 38 and 89.1% of the voting-age population in District 37.
Accordingly, they argue, the reapportionment law has not caused any
resident to suffer “a ‘vote dilution’ injury.” MALC responds that
Cameron County residents, including two of its members, will
nevertheless suffer a concrete deprivation of their constitutional right to
two “whole state representative[s]” rather than “one whole state
representative and two partial representatives.” This harm, MALC
explains, is in the nature of “representational dilution” because “[t]he
residents of Texas counties have their practical interests served better
when their political representation is unified, rather than split apart.”
As an initial matter, we note that to establish associational
standing, general references to members are usually insufficient. See,

14
e.g., Summers v. Earth Island Inst., 555 U.S. 488, 498–99 (2009) (“Th[e]
requirement of naming the affected members has never been dispensed
with in light of statistical probabilities, but only where all the members
of the organization are affected by the challenged activity.”). MALC does
not claim that all its members are injured by the alleged
“representational dilution,” and indeed it is possible that some members
might be affected in contradictory ways, as we discuss below in assessing
the related question of whether the litigation is germane to the
organizational purpose. The mere likelihood that some member of an
association would have individual standing has never been enough. If
it were, the cases involving environmental standing would all have come
out differently. Lujan, for example, involved minute dissection of two
individual members’ standing. See 504 U.S. at 563–67. And in Sierra
Club v. Morton, the Court did not dispute that the Sierra Club surely
had some members who would have been aggrieved by the challenged
development; however, without saying who they were, the Sierra Club
could not satisfy the first requirement to establish associational
standing. 405 U.S. 727, 735 (1972).
These requirements may seem technical, but they are
fundamental. Without standing, the courts cannot proceed at all, and
the party who invokes the courts’ jurisdiction “bears the burden of
establishing these elements” of standing; it is not the duty of the other
side, or of the courts, to negate them. Lujan, 504 U.S. at 561. The lack
of specifically identified members—who are then subject to scrutiny to
ensure that they would in fact have standing on their own—calls into

15
question whether MALC has established the first prong of associational
standing.
Nonetheless, we can assume without deciding that MALC has
met this initial burden. Moreover, if MALC’s substantive interpretation
of Section 26 is correct, we agree that Cameron County’s residents are
being deprived of their right, under the Texas Constitution, to two
representatives fully devoted to serving the interests of those residents
rather than the residents of both Cameron County and a neighboring
county. That this harm is shared among county residents does not make
it a “generalized grievance” that cannot confer individual standing. See
id. at 575 (quoting United States v. Richardson, 418 U.S. 166, 171 (1974)
(holding that resting standing on a “generalized grievance” is
inconsistent with “the framework of Article III” because “the impact on
[the plaintiff] is plainly undifferentiated and ‘common to all members of
the public’”)). The Supreme Court has explained that such generalized
grievances involve harm that “is not only widely shared, but is also of
an abstract and indefinite nature—for example, harm to the ‘common
concern for obedience to law.’” Fed. Election Comm’n v. Akins, 524 U.S.
11, 23 (1998) (citation omitted). The harm at issue here is not abstract
but quite specific: Cameron County residents are allegedly entitled to
two whole representative districts within Cameron County but, under
H.B. 1, they have only one. If a Cameron County resident does not have
standing to pursue a Section 26 claim, we struggle to envision a plaintiff
who would.
That said, we recognize that standing requirements render some
constitutional violations particularly (and frustratingly) unamenable to

16
challenge. Richardson, cited above, illustrates this point. There, the
plaintiff argued that keeping CIA expenditures secret violated the
U.S. Constitution’s requirement that such amounts be made public. 418
U.S. at 168. The Supreme Court held that Richardson did not have
standing despite agreeing with the contention that “if [he] is not
permitted to litigate this issue, no one can do so.” Id. at 179. Voting in
a lawfully apportioned district, however, is a personal right;
participating in the political process is a fundamental individual liberty,
not merely a generic and undifferentiated one. See, e.g., Khanoyan, 637
S.W.3d at 763. Section 26 provides the kind of right that someone will
be able to vindicate.
However, even assuming that MALC has alleged that at least one
of its members has individual standing to pursue a Section 26 claim,
associational standing requires more. The Governor and Secretary also
argue that MALC fails to meet the second requirement of associational
standing: that the interests it seeks to protect are germane to its
purpose. Tex. Ass’n of Bus., 852 S.W.2d at 447. We agree.
Importantly, to satisfy this element, the interest that is germane
to the organization’s purpose “must also relate to the interest by which
its members would ‘have standing to sue in their own right.’” Save Our
Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 886 (Tex.
App.—Austin 2010, pet. denied); Mosaic Residential N. Condo. Ass’n v.
5925 Almeda N. Tower, L.P., No. 01-16-00414-CV, 2018 WL 5070728, at
*12 (Tex. App.—Houston [1st Dist.] Oct. 18, 2018, no pet.). For example,
in Save Our Springs Alliance, an organization (SOS Alliance) that was
formed to protect the Edwards Aquifer and to prevent and reverse

17
pollution of Barton Springs claimed associational standing to challenge
a city’s development agreements based on injuries to SOS Alliance’s
members that were unrelated to increased pollution to the aquifer, such
as increased traffic and decreased property values. 304 S.W.3d at 886.
Because the members’ interests that gave them individual standing to
bring the claims asserted were not themselves germane to SOS
Alliance’s purpose, SOS Alliance could not satisfy the second prong of
associational standing. Id. at 886–87. By contrast, in Hays County v.
Hays County Water Planning Partnership, the threatened injuries that
allowed the members of a community group to sue the county in their
own right to invalidate a transportation plan—involving loss of property
values based on the proposed development—were the specific “kinds of
community issues” that the group was created to address. 106 S.W.3d
349, 357 (Tex. App.—Austin 2001, no pet.). Accordingly, the court held
that the members’ interests the group sought to protect through its
lawsuit were germane to its organizational purpose. Id.
We agree with this required connection between the first and
second prongs of associational standing. Without it, “an association that
has an interest against a challenged activity [could] obtain standing by
adding a member who has individual standing to sue based on his own
unrelated interest against the same activity.” Save Our Springs All.,
304 S.W.3d at 886. MALC has failed to make the requisite connection.
MALC alleges that its mission includes “maintaining and
expanding Latino representation across elected offices in Texas.” It
further alleges that, although all three districts lying wholly or partly
within Cameron County contain a Hispanic majority, H.B. 1 has

18
nevertheless reduced the Latino population percentage in two of those
districts. In this way, MALC explains, its Section 26 claims are
“germane to its organizational purpose.” But as MALC itself asserts,
the injury that gives a Cameron County resident individual standing to
pursue a Section 26 claim is the deprivation of the right to have two
“whole state representative[s]” representing the interests of the county
and its residents. That injury is shared by county residents regardless
of race, and the county-line rule applies across the State irrespective of
county geography or demographics. Indeed, one can hypothesize an
application of Section 26 that would objectively cut against MALC’s
stated purposes by preventing the placement of Latinos from different
counties into the same district, thus diffusing rather than enhancing
their political might. Thus, the injury that gives some MALC members
standing to sue in their own right as Cameron County residents for a
Section 26 violation is unrelated to MALC’s organizational purpose.
MALC also asserts that, as a legislative caucus whose members
are Texas House Representatives, it has a general interest in opposing
unconstitutional legislation. However, MALC does not argue here that
its members have standing to sue in their own right based on their
duties as legislators, so again, the requisite connection between the
interest giving rise to the members’ standing and the interest that is
germane to MALC’s purpose is lacking.
Accordingly, MALC does not have associational standing to bring
its claims. Because MALC does not assert any other basis for standing,
its claims must be dismissed for lack of subject matter jurisdiction.

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 B. The Gutierrez Plaintiffs’ Standing

As noted, like MALC, the Gutierrez Plaintiffs seek a declaratory
judgment that H.B. 1 violates Section 26’s county-line rule. They also
seek a declaratory judgment that both H.B. 1 and S.B. 4 violate
Article III, Section 28. Because Section 28 requires the Legislature to
apportion the senatorial and representative districts “at its first regular
session after the publication of each United States decennial census,”
the Gutierrez Plaintiffs assert that the Legislature violated that
provision by undertaking the reapportionment process during an earlier
special session. Although there are four Gutierrez Plaintiffs, they
defend the standing of only two—one for each claim. See Heckman, 369
S.W.3d at 152 n.64 (explaining that “where there are multiple plaintiffs
in a case, who seek injunctive or declaratory relief (or both), who sue
individually, and who all seek the same relief . . . the court need not
analyze the standing of more than one plaintiff—so long as that plaintiff
has standing to pursue as much or more relief than any of the other
plaintiffs”).
First, they argue that Ruben Cortez Jr., a candidate for House
District 37, has standing to pursue the Section 26 claim. They contend
that under H.B. 1, District 37 now comprises a much larger geographic
territory than before, requiring a greater expenditure of campaign
resources. They further argue that Cortez has standing as a resident of
Cameron County and District 37, which is one of the districts that is not
wholly contained within Cameron County. As discussed above with
regard to the first element of MALC’s associational standing, we agree
that Cortez has sufficiently alleged a particularized injury as a Cameron

20
County (and, notably, as a District 37) resident. We therefore need not
address whether he has alleged a sufficient injury as a candidate for
office. 4
Next, the Gutierrez Plaintiffs argue that Roland Gutierrez, a
state senator elected in 2020, has standing to pursue a Section 28 claim.
State senators are elected to serve four-year terms; however, following
reapportionment, all senators must stand for reelection under the new
district maps. TEX. CONST. art. III, § 3. The Gutierrez Plaintiffs assert
that because “the first legitimate opportunity for the Legislature to
reapportion is in 2023 [at the first regular session after the publication
of the decennial census], Senator Gutierrez’s tenure is protected until
2024, when his four-year term expires.” The Legislature’s
unconstitutional apportionment during a special session in 2021, they
argue, requires Senator Gutierrez to run for reelection in 2022 and thus
deprives him of his right to a four-year term. The State responds that
Senator Gutierrez’s “injury” of being forced to run for reelection before
the expiration of his current term is traceable not to any wrongdoing by
the State, but to the Texas Constitution’s requirement that senators
stand for reelection when districts are reapportioned.
On this point, we agree with the Gutierrez Plaintiffs. It is true
that the Texas Constitution requires Senator Gutierrez to run for
reelection, but the basis of the Section 28 claim is that the circumstances
giving rise to that requirement would not have arisen if not for the

4We note that during the pendency of this cause, Cortez lost the
Democratic primary runoff election for House District 37. Accordingly, he no
longer has standing as a candidate to pursue the prospective relief he seeks.

21
allegedly unconstitutional reapportionment. That is sufficient for
standing purposes. See Bennett v. Spear, 520 U.S. 154, 168–69 (1997)
(explaining that traceability does not require the defendant’s actions to
be “the very last step in the chain of causation”).
The State further contends that the Gutierrez Plaintiffs’ alleged
injury is not traceable to or redressable by the State of Texas itself—the
only defendant against whom they asserted their claims—providing an
additional reason that they lack standing to pursue the declaratory
relief they request. Prior suits challenging reapportionment laws have
typically been brought against state officials like the Governor, whose
duties include ordering elections for officers of the state government and
members of the United States Congress, TEX. ELEC. CODE § 3.003(a)(1),
and the Secretary of State, who is the “chief election officer of the state,”
id. § 31.001(a). See Clements v. Valles, 620 S.W.2d 112, 113 (Tex. 1981)
(plaintiffs sought a declaration of the unconstitutionality of a
reapportionment bill and an injunction restraining the Governor,
Attorney General, and Secretary of State from conducting elections
pursuant to the bill); Smith, 471 S.W.2d at 375–76 (plaintiffs sought a
declaration of the unconstitutionality of a reapportionment bill and an
injunction restraining the Governor, Secretary of State, Chairman of the
Democratic Executive Committee, and County Judge and County Clerk
of Midland County from conducting elections pursuant to the bill). 5 The
lack of requested relief against “the State” in these cases makes sense

5In Perry v. Del Rio, another redistricting case, some of the plaintiffs
named the State as a defendant but ultimately nonsuited it. 66 S.W.3d 239,
246 (Tex. 2001).

22
because the State itself does not enforce election laws. See Lewis v.
Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (holding that the
plaintiffs, in challenging the constitutionality of a statute voiding local
laws requiring compensation higher than the minimum wage, lacked
standing under Lujan as to their claims against the attorney general,
who had no authority to enforce the complained-of statute).
Though we have not been presented with the precise issue, our
courts of appeals have generally held that challenges to the
constitutionality of a statute are not properly brought against the State
in the absence of an “enforcement connection” between the challenged
provisions and the State itself. Paxton v. Simmons, 640 S.W.3d 588,
602–03 (Tex. App.—Dallas 2022, no pet. h.); Ector Cnty. All. of Bus. v.
Abbott, No. 11-20-00206-CV, 2021 WL 4097106, at *10 (Tex. App.—
Eastland Sept. 9, 2021, no pet.); see also Holt v. Tex. Dep’t of Ins.–Div. of
Workers Comp., No. 03-17-00758-CV, 2018 WL 6695725, at *5 (Tex.
App.—Austin Dec. 20, 2018, pet. denied) (holding, in suit challenging
the constitutionality of certain Labor Code provisions, that the State
was not a proper party to the lawsuit and affirming the trial court’s
dismissal of the State on a plea to the jurisdiction). In Paxton, the court
reversed the trial court’s denial of the plea to the jurisdiction filed by the
State and the Attorney General in a suit involving a constitutional
challenge to a Texas Property Code provision. 640 S.W.3d at 592–93.
The plaintiff argued that the “State of Texas, via its legislature, directly
passed the challenged statute and thus appears to have the most
relevant connection to defending the constitutionality of that law.” Id.
at 603. However, in light of the absence of any enforcement authority

23
by the State, the court held that the plaintiff failed to allege sufficient
facts to satisfy the traceability element of standing. Id.; see Lujan, 504
U.S. at 560–61 (the injury must be “fairly traceable” to the defendant’s
challenged action). Similarly, in Ector County Alliance, which involved
a challenge to the constitutionality of the Texas Disaster Act and certain
executive orders issued under it, the court of appeals held that the
plaintiff lacked standing to seek relief against the State and the
Governor where it “did not plead that the Governor or the State ever
threatened to enforce any executive order [issued under the Act], and
the Governor and the State have conceded that they do not have the
authority to do so.” 2021 WL 4097106, at *10.
Notably, Texas law requires that, in a lawsuit in which the
constitutionality of a state statute is challenged and the attorney
general is not a party or counsel, notice must be served on the attorney
general, who may intervene in the suit without waiving the State’s
immunity. TEX. GOV’T CODE § 402.010. Similarly, in a proceeding
brought under the Uniform Declaratory Judgments Act to declare a
statute, ordinance, or franchise unconstitutional, “the attorney general
of the state must . . . be served with a copy of the proceeding and is
entitled to be heard,” but neither the attorney general nor the State is
required to be made a party to the proceeding. TEX. CIV. PRAC. & REM.
CODE § 37.006(b). 6 This is consistent with the conclusion that the State

6 By contrast, “[i]n any proceeding [under the UDJA] that involves the
validity of a municipal ordinance or franchise, the municipality must be made
a party.” TEX. CIV. PRAC. & REM. CODE § 37.006(b) (emphasis added); see Holt,
2018 WL 6695725, at *5 (discussing the meaningful distinction between the

24
is not automatically a proper defendant in a suit challenging the
constitutionality of a statute merely because the Legislature enacted it. 7
Holt, 2018 WL 6695725, at *5; cf. California v. Texas, 141 S. Ct. 2104,
2114–15 (2021) (holding that the plaintiffs lacked standing to challenge
an unenforceable statute).
We recognize that the Fifth Circuit has held to the contrary in
addressing a challenge to a Texas statute establishing the requirements
and procedures for a voter needing assistance to vote. OCA-Greater
Houston v. Texas, 867 F.3d 604, 607, 613 (5th Cir. 2017). The plaintiff
in OCA sued both the State and the Secretary of State, and the court
held that the plaintiff had standing to sue both defendants, summarily
stating that “[t]he facial invalidity of a Texas election statute is, without
question, fairly traceable to and redressable by the State itself and its
Secretary of State.” Id. at 613. But while the Fifth Circuit explained
the basis for its conclusion as to the Secretary of State—the
“enforcement connection” to the statute was satisfied considering the
Secretary’s position as “the ‘chief election officer of the state’ [who] is
instructed by statute to ‘obtain and maintain uniformity in the
application, operation, and interpretation of this code and of the election

UDJA’s requirement that a municipality be “made a party” and its
requirement that the Attorney General be “served with a copy of the
proceeding”).
7 In discussing the UDJA’s limited waiver of immunity for claims
challenging the validity of statutes, we have explained that the waiver extends
to “the relevant governmental entities.” City of El Paso v. Heinrich, 284 S.W.3d
366, 373 n.6 (Tex. 2009). The identity of the relevant governmental entity for
waiver purposes necessarily depends on the statute being challenged.

25
laws outside this code’”—it provided no such analysis with respect to the
State itself. Id. at 613–14 (internal citations omitted). Given the
conclusory nature of the court’s determination of standing as to the
claims against the State, as well as the fact that another defendant with
the proper enforcement connection to the statute had been named in
that case, we decline to follow OCA’s bare holding here.
As the State itself has no enforcement authority with respect to
election laws, and the State is the only defendant against which the
Gutierrez Plaintiffs seek a declaration regarding the constitutionality of
those laws, the Gutierrez Plaintiffs have failed to meet the traceability
element of standing. However, if the pleadings “do not affirmatively
demonstrate incurable defects in jurisdiction,” we allow plaintiffs an
opportunity to amend. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226–27 (Tex. 2004). Declaratory-judgment claims
challenging the validity of a statute may be brought against the relevant
governmental entity. And again, our case law is replete with
reapportionment challenges brought against proper defendants like the
Governor and the Secretary of State. E.g., Clements, 620 S.W.2d at 113;
Smith, 471 S.W.2d at 375–76.
The State asserts that incurable defects in jurisdiction exist for
three reasons, two of which we have already rejected (that the plaintiffs
seek an advisory opinion and lack a cognizable injury in fact). We turn
to the third—sovereign immunity—to determine whether the case must
be dismissed rather than remanded.

26
 V. Sovereign Immunity

Although the UDJA generally waives immunity for declaratory-
judgment claims challenging the validity of statutes, we have held that
“immunity from suit is not waived if the constitutional claims are
facially invalid.” Klumb v. Houston Mun. Emps. Pension Sys., 458
S.W.3d 1, 13 (Tex. 2015). The State asserts that both constitutional
claims are facially invalid and thus barred by immunity. Whether that
is so hinges on our interpretation of the provisions at issue. We recently
reaffirmed that “[o]ur guiding principle when interpreting the Texas
Constitution is to give effect to the intent of the voters who adopted it.”
Degan v. Bd. of Trs. of Dall. Police & Fire Pension Sys., 594 S.W.3d 309,
313 (Tex. 2020). In doing so, we “presume that the framers carefully
chose the language,” “interpret their words accordingly,” and “may
consider contextual factors such as ‘the history of the legislation, the
conditions and spirit of the times, the prevailing sentiments of the
people, the evils intended to be remedied, and the good to be
accomplished.’” Id. (quoting Harris Cnty. Hosp. Dist. v. Tomball Reg’l
Hosp., 283 S.W.3d 838, 842 (Tex. 2009)).
We also emphasize, however, that our analysis of these
constitutional provisions arises as part of our consideration of
jurisdiction. 8 This Court always has jurisdiction to determine its own,

8 Cf., e.g., In re Lazy W Dist. No. 1, 493 S.W.3d 538, 544 (Tex. 2016)
(“Governmental immunity from suit ‘implicates a court’s subject-matter
jurisdiction over pending claims, and without jurisdiction the court cannot
proceed at all in any cause’. The trial court had the obligation to consider
the . . . assertion of immunity when the plea to the jurisdiction was filed. We

27
and the lower courts’, jurisdiction. Houston Mun. Emps. Pension Sys. v.
Ferrell, 248 S.W.3d 151, 158 (Tex. 2007). As in every Texas case
involving sovereign immunity, this jurisdictional inquiry touches the
merits because, as noted, courts lack jurisdiction to proceed if the claim
appears “facially invalid.” Klumb, 458 S.W.3d at 13. We go no further
than necessary to determine jurisdiction.

A. Section 26

We first address the validity of the Gutierrez Plaintiffs’ claim for
a declaratory judgment that H.B. 1 violates the county-line rule in
Article III, Section 26. As discussed below, we hold that the claim is not
facially invalid and thus not barred by immunity. The ultimate merits
determination remains open for additional proceedings on remand if the
parties pursue it.
Section 26 begins: “The members of the House of Representatives
shall be apportioned among the several counties, according to the
number of population in each, as nearly as may be, on a ratio obtained
by dividing the population of the State, as ascertained by the most recent
United States census, by the number of members of which the House is
composed.” TEX. CONST. art. III, § 26. As discussed above, that “ratio”
yields what the parties label the “ideal district size,” which is 194,303
based on the 2020 census. Section 26 goes on to state that “whenever a
single county has sufficient population to be entitled to a

do not hold that a trial court must make an early ruling in every situation, only
that the trial court did not abuse its discretion in determining to do so here.”
(internal footnotes omitted)).

28
Representative, such county shall be formed into a separate
Representative District.” Id. The parties agree that under Section 26,
a county with a population of the ideal district size is entitled to its own
House district.
Section 26 then addresses what happens “when any one county
has more than sufficient population to be entitled to one or more
representatives”; in that case, “such representative or representatives
shall be apportioned to such county, and for any surplus of population it
may be joined in a Representative District with any other contiguous
county or counties.” Id. The parties again agree that if a county has a
population of more than the ideal district size but less than twice the
ideal district size, Section 26 entitles that county to one district wholly
within its borders, with the surplus population joined in a district with
a contiguous county or counties.
Cameron County, with a population of 421,017, is more than twice
the ideal district size. The State argues that H.B. 1 facially complies
with Section 26 because it apportions one House district entirely to
Cameron County—District 38—and joins the “surplus population” with
two “contiguous . . . counties” to form District 35 (with Hidalgo County)
and District 37 (with Willacy County). The Gutierrez Plaintiffs respond
that a county with Cameron’s population is entitled to two House
districts within its borders, with the surplus population joined with one
other adjacent district, not two.
We conclude that the Gutierrez Plaintiffs’ arguments are more
than sufficient to survive a sovereign-immunity challenge at this stage
of the proceedings. Section 26 states that a county with a sufficient

29
population for “more” than one representative is entitled to be
apportioned “such . . . representatives.” Then, any “surplus of
population” is joined with a “contiguous county or counties.” We
interpreted Section 26 in this manner in Smith, explaining:
[For] a county which already has one or more
representatives allocated thereto, it becomes permissible to
join a portion of that county (in which the surplus
population reside and which is not included in another
district within that county) with contiguous area of another
county to form a district. . . . It is still required that a
county receive the member or members to which that
county’s own population is entitled when the ideal district
population is substantially equalled or is exceeded.

471 S.W.2d at 378 (emphasis added). And we at least impliedly
endorsed this interpretation again in Clements, stating that “the failure
of the [reapportionment] plan in House Bill 960 to allot two
representative districts to Nueces County is not justified by the
necessity of complying with the Voting Rights Act” based on “evidence
of two alternate plans which created two districts wholly within Nueces
County and [complied with] the Voting Rights Act.” 620 S.W.2d at 115.
The State dismisses Clements as containing a “stray statement” that
should not “override the plain language of the constitutional text.” Even
if the statement was dicta, it is wholly consistent with the constitutional
text. By contrast, the State’s interpretation appears to stretch
Section 26’s language and undermine its structure. And the State’s
argument is cursory at best in responding to both (1) the provision’s
mandate to apportion “representatives” to a county with sufficient
population to be entitled to “more” than one and (2) the provision’s use
of the word “surplus” to describe the remaining population after those

30
representatives are apportioned. TEX. CONST. art. III, § 26 (emphasis
added).
As noted, we recognized in Smith that Section 26’s requirements
“are inferior to the necessity of complying with the Equal Protection
Clause.” 471 S.W.2d at 378. However, the burden is on the State to
show that noncompliance with Section 26 is “either required or justified
to comply with the one-man, one-vote decisions.” Id. Thus far, the State
has asserted no such justification here. The possibility that it could do
so in further proceedings does not render the Gutierrez Plaintiffs’
Section 26 claim facially invalid for purposes of whether immunity has
been waived. Accordingly, we hold that the State is not entitled to
dismissal of that claim on immunity grounds. 9

B. Section 28

Finally, we address whether the Gutierrez Plaintiffs’ Section 28
claim is barred by sovereign immunity. Article III, Section 28 was
amended to its current form in 1948 and states in pertinent part:
The Legislature shall, at its first regular session after the
publication of each United States decennial census,

9 The dissent accuses us of resolving the merits after concluding the
plaintiffs lack standing and giving those plaintiffs “exactly what they sued to
obtain: an opinion of this Court siding with their interpretation of [Section 26].”
Post at 3 (Hecht, C.J., dissenting). Saying we “resolve[] the merits” of the
claims is an erroneous characterization. Id. As we have emphasized, we
address only whether the claims are barred by sovereign immunity, an
additional jurisdictional hurdle presented by the State. The basis for the
State’s assertion of sovereign immunity is that the claims are facially invalid,
and we address the “merits” at this initial stage of the proceedings only to the
extent necessary to grant the opportunity to replead. We have not, as the
dissent implies, decided the ultimate outcome of the case.

31
 apportion the state into senatorial and representative
districts, agreeable to the provisions of Sections 25 and 26
of this Article. In the event the Legislature shall at any
such first regular session following the publication of a
United States decennial census, fail to make such
apportionment, same shall be done by the Legislative
Redistricting Board of Texas . . . . Said Board shall
assemble in the City of Austin within ninety (90) days after
the final adjournment of such regular session. The Board
shall, within sixty (60) days after assembling, apportion
the state into senatorial and representative districts, or
into senatorial or representative districts, as the failure of
action of such Legislature may make necessary. . . . The
Supreme Court of Texas shall have jurisdiction to compel
such Board to perform its duties in accordance with the
provisions of this section by writ of mandamus or other
extraordinary writs conformable to the usages of law. . . .

TEX. CONST. art. III, § 28. The provision’s interpretive commentary
explains that although the Constitution had required reapportionment
after each decennial census since 1876, no mechanism existed to enforce
that obligation, and at the time of the 1948 amendment there had been
no reapportionment since 1921. Id. interp. commentary (West 2007).
Section 28 was thus amended to (1) create the Legislative Redistricting
Board (LRB) to accomplish that task if the Legislature failed to do so
and (2) give this Court jurisdiction to compel the LRB to fulfill its duties
if necessary. Id. The Gutierrez Plaintiffs’ Section 28 claim is premised
on the assertion that because the decennial census data was released
after the conclusion of the 2021 regular session, the Legislature could
not undertake reapportionment until the 2023 regular session—“the
first regular session following the release”—and thus violated Section 28
by doing so during an earlier special session.

32
 In arguing that the Section 28 claim is facially invalid, the State
asserts that while Section 28 requires the Legislature to apportion
during the first regular session after publication of the census, it does
not forbid apportionment at other times and thus allows it. Further, the
State argues that interpreting Section 28 to foreclose reapportionment
under the circumstances would cause Section 28 to violate the U.S.
Constitution and thus open the State to malapportionment challenges
under federal law. The Gutierrez Plaintiffs respond that Section 28
imposes a single, binding schedule for reapportionment that begins with
the Legislature’s having the opportunity to act during the identified first
regular session after release of the census data. See Mauzy v. Legis.
Redistricting Bd., 471 S.W.2d 570, 573 (Tex. 1971) (holding that the
“first regular session following the publication” of the census
encompasses a regular session that was convened before publication so
long as publication occurred during the session).
Citing Walker v. Baker, the Gutierrez Plaintiffs rely on the
interpretive principle that “where a power is expressly given [by the
Constitution] and the means by which, or the manner in which, it is to
be exercised is prescribed, such means or manner is exclusive of all
others.” 196 S.W.2d 324, 327 (Tex. 1946) (citation omitted). However,
the Gutierrez Plaintiffs read too much into Walker and the principle it
espouses. The issue in that case was whether the Senate had the
authority to convene itself in order to exercise its express power to
consider the Governor’s recess appointments. Id. at 326. In holding it
did not, this Court examined the constitutional provisions governing the
timing and manner of legislative sessions; those provisions “furnish a

33
regular session of the Senate every two years and a special session at
such other times as the Legislature may be convened by the Governor.”
Id. at 328. We held that “[t]he means being thus expressly provided for
the Senate to be in session and thereby to have an opportunity to
consider the Governor’s appointments, it follows that any authority in
the Senate to convene itself at other times for that purpose is excluded.”
Id.
Importantly, we went on to reiterate another fundamental
constitutional principle: the Legislature is vested with “all legislative
power—the power to make, alter and repeal laws—not expressly or
impliedly forbidden by other provisions of the State and Federal
Constitutions.” Id.; see also Shepherd v. San Jacinto Junior Coll. Dist.,
363 S.W.2d 742, 743 (Tex. 1962) (noting that “an act of a state legislature
is legal when the Constitution contains no prohibition against it” and
that such a prohibition must be “express” or at least “clearly implied”).
Because that principle “applies to legislative power to be exercised by
the Legislature,” and “[c]onfirmation or rejection of the Governor’s
appointments is an executive function expressly delegated to the
Senate,” we rejected the argument that “the power asserted in this case
exists because not expressly prohibited.” Walker, 196 S.W.2d at 328
(emphasis added).
In apportioning legislative districts, the Legislature is exercising
its legislative power to make laws, not “a power ordinarily and
intrinsically belonging to another department of the government.” Id.
Section 28 provides a mechanism to ensure that the Legislature
exercises this power in a timely fashion following each decennial census,

34
but it neither expressly nor impliedly forecloses this power from being
exercised at another time. See Mumme v. Mars, 40 S.W.2d 31, 33 (Tex.
1931) (“[T]he enumeration in the Constitution of what the Legislature
may or shall do in providing a system of education is not to be regarded
as a limitation on the general power of the Legislature to pass laws on
the subject . . . .”).
The Gutierrez Plaintiffs argue that our precedent forecloses the
State’s reading of Section 28, but the case on which they rely does not
contain the broad holding they discern. In Mauzy, the LRB convened to
reapportion senatorial districts when the Legislature failed to do so
during the 1971 regular session, and the courts then struck down the
statute apportioning the representative districts. 471 S.W.2d at 572.
We were asked whether the LRB had jurisdiction to apportion the
districts in those circumstances. We first addressed the argument that
because the 1970 decennial census was published during—not before—
the 62nd Legislature’s regular session, the LRB lacked any authority to
reapportion under Section 28 even though the Legislature had failed to
complete that task. Id. at 572–73. We rejected the argument, holding
that the “first regular session following publication” of a census
encompasses a regular session that was convened before publication so
long as publication occurs “during the session.” Id. at 573. Holding
otherwise, we explained, “would require interpolation of the word
‘convened’ into the constitutional provision” and would defeat “the
overriding intent of the people in adopting Sec[tion] 28”: legislative
apportionment at the regular session convened in January following the
taking of the census (if publication was before or during the session),

35
“with jurisdiction in the [LRB] to complete the task in the event of
legislative failure.” Id.
Here, if the Legislature had failed to reapportion the legislative
districts during the special session called by the Governor, the LRB
would have no authority to “complete the task” because Section 28 is the
source of both the LRB’s power and this Court’s authority to order the
LRB to act. As Section 28 prescribes the means and manner in which
that power may be exercised—via a set schedule when the Legislature
fails to apportion at the “first regular session following the publication”
of the decennial census—such means and manner “is exclusive of all
others.” Walker, 196 S.W.2d at 327. The same cannot be said of the
Legislature’s exercise of its legislative power. 10
The Gutierrez Plaintiffs emphasize that since Section 28 was
adopted, the Legislature has never (until now) first reapportioned state
legislative districts during a special session. But neither has the
Legislature been faced with such a lengthy delay in the release of the
decennial census, and it is undisputed that the 2020 census data
rendered the then-existing district maps unconstitutional. That the
Legislature took unprecedented action to address an unprecedented
situation says nothing about whether it exceeded its authority in doing
so.

10 In Terrazas v. Ramirez, we held that Section 28 does not “prohibit[]
the Legislature from acting in later special or regular sessions after the
constitutional authority of the [LRB] has expired.” 829 S.W.2d 712, 726 (Tex.
1991). We were not asked, and did not opine on, whether Section 28 prohibits
the Legislature from acting in earlier sessions.

36
 Finally, the Gutierrez Plaintiffs argue that the State’s
interpretation leads to absurd results. Noting that the Texas
Constitution provides for four-year senate terms but requires all
senators to run for reelection following reapportionment, TEX. CONST.
art. III, § 3, the Gutierrez Plaintiffs contend that Section 28 must be
read to cabin the Legislature’s reapportionment authority, lest the
Legislature seek to perpetually interfere with the four-year senate
terms by minimally altering districts every legislative session. For two
reasons, we disagree that this argument assists the Gutierrez Plaintiffs
in carrying their jurisdictional burden to show that their claim is not
facially invalid.
First, as the State argues, the mere “specter” of such
gamesmanship, which has never occurred, does not override the
Constitution’s plain text or the nature of the legislative authority that
the plaintiffs contend has been restricted. Second, the Gutierrez
Plaintiffs’ interpretation leads to the equally, if not more, absurd result
that the Legislature cannot reapportion legislative districts despite
their undisputed, facial unconstitutionality. And that result is not a
possibility; it is a factual certainty.
In sum, we hold that the Gutierrez Plaintiffs’ claim for
declaratory relief that H.B. 1 and S.B. 4 violate Article III, Section 28 is
facially invalid and thus barred by sovereign immunity. The trial court
therefore erred in denying the State’s plea to the jurisdiction on that
claim.

37
 VI. Conclusion

Because MALC lacks associational standing to bring its claims,
the trial court erred in denying the Governor and Secretary’s plea to the
jurisdiction. We thus reverse that portion of the trial court’s judgment
and dismiss MALC’s claims for lack of jurisdiction. Further, the
Gutierrez Plaintiffs’ Section 28 claim is facially invalid and barred by
sovereign immunity, requiring its dismissal. However, plaintiff Ruben
Cortez Jr. has standing to pursue the Section 26 claim against a proper
State defendant, and sovereign immunity does not bar that claim.
Although he did not sue the proper defendant, requiring reversal of the
trial court’s order as to the Section 26 claim, that defect is curable.
Accordingly, we remand the case to the trial court to give the Gutierrez
Plaintiffs the opportunity to replead.

Debra H. Lehrmann
Justice

OPINION DELIVERED: June 24, 2022

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